May 6, 2016

Luis v. United States and a Right to Counsel for the Rich

The Sixth Amendment,
which the Supreme Court has for over half a century interpreted to
afford indigent criminal defendants a right to a lawyer at government
expense, now also provides wealthy defendants something: protection from
the government’s freezing their untainted assets (as opposed to those
traceable to, or proceeds of, crime) to prevent retaining counsel of
their choice. As principled—and protective of the Sixth Amendment—as
this distinction may be, it reinforces something much more pernicious:
there is now effectively a right of the rich to be free from
impoverishment by the government, to protect their Sixth Amendment right
to retain counsel of their choosing, while the identical Amendment does not provide an indigent defendant access to an actual lawyer of anyone’s choice.

Luis v. United States,
was quite simple: federal law permits pre-trial freezing of certain
criminal defendants’ assets that are proceeds of the crime, traceable to
the crime, or of equal value to either of the first categories. Ms.
Luis allegedly obtained $45 million through health care-related fraud,
but when indicted had only $2 million, which the government agreed was
neither proceeds of nor traceable to the fraud. Freezing these funds, to
satisfy what the government contended would be restitution upon
conviction, would preclude her hiring counsel of her choice. If the
Sixth Amendment truly conferred a right to hire counsel of one’s choice,
then did it also prevent the government from vitiating this right by
freezing all one’s resources with which to pay counsel? Yes, the Court
found, although not for any reason that commanded a majority.

Given the essential fungibility of money, the distinction between
freezing financial assets that are proceeds of criminal activity, or
even arguably such, and those equivalent in amount but conceded to be
untainted may be a bit hazy. But it is this distinction between the
characterizations “tainted” and “untainted” assets (or what’s “mine,”
i.e., the defendant’s, versus what’s “yours,” i.e., the Government’s, in
Justice Breyer’s language for the plurality), as opposed to simply
“forfeitable” assets (Justice Kennedy’s terminology for the dissenters)
that divides the four member plurality from the three dissenters.
Justice Thomas’ concurrence in the judgment, based on a plain meaning
interpretation of the term “right to the assistance of counsel,” that
must have meant to the Framers a right not to have the government seize
all one’s resources because the only counsel available “back in the day”
was one you hired, and 17th and 18th century understandings of
“forfeiture” were exclusively post-conviction, is a paean to the late
Justice Scalia (cited five times by name). Whatever the merits of the
tainted/untainted as opposed to forfeitable characterizations, after Luis v. United States,
it’s crystal clear the government may no longer seek to freeze assets
that can’t be traced to criminal activity, even if they would be all
that’s left to ensure adequate resources are available for forfeiture
after conviction, if doing so would preclude a rich defendant from
hiring counsel of her choice.

Of course, this choice is not limited to wealthy defendants, but
one—like the choice to sleep under the bridges of Paris, beg in the
streets, or steal bread—that the law in its majesty equally forbids the rich and the poor,
though it stands in stark contrast to the right of an indigent criminal
defendant to actually have a genuine, living, breathing lawyer of anyone’s choice. As the Court held in Rothgery v. Gillespie County, 554 U.S. 191, 213 (2008), even the attachment of the right to counsel by appearance before a judicial officer in a criminal proceeding does not then
give an indigent defendant a right to a lawyer. Whether even a delay of
six months to obtain representation by a lawyer would harm this right
is a nice, but unreached, question. (The Court’s studied avoidance of
this question ensures indigent defendants often receive counsel so late
that their rights are not effectively protected, as detailed in 2014 by the Sixth Amendment Center.)

Both the plurality and the principal dissent in Luis are
only too quick to point out the parade of horribles facing such affluent
defendants: they would have to “fall back on overworked and underpaid
public defenders.” (Breyer, J., Slip. Op. at 15.) Of course, “[g]iven
the large volume of defendants in the criminal justice system who rely
on public representation, it would be troubling to suggest that a
defendant who might be represented by a public defender will receive
inadequate representation.” (Kennedy, J., Slip Op. 14.) Yet this is
exactly what the Brennan Center report,
that Justice Kennedy himself cites, states: Inadequate funding means
public defenders “are simply unable to provide clients with their
constitutional right to counsel, effectively making Gideon an unfunded mandate at a time when public defenders are needed most.”

A wealthy defendant cannot constitutionally be converted into an
indigent one, with the attendant disabling effects for her defense, yet
an indigent defendant not only has no right to access the sort of
preventive, proactive litigation that retained counsel can provide, but
cannot even rely on having the right to counsel made real—with an actual
lawyer—until what may be sometime after having appeared in court. Just
one more way the rich really are different, even when they are charged
with a crime.